Demetrick Cameron v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: May 9, 2013
• Docket: 48A02-1209-CR-733
• Status: Unpublished

Opinion

Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, May 09 2013, 8:40 am

collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

JOHN T. WILSON GREGORY F. ZOELLER Anderson, Indiana Attorney General of Indiana

JONATHAN R. SICHTERMANN Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

DEMETRICK CAMERON, ) ) Appellant-Defendant, ) ) vs. ) No. 48A02-1209-CR-733 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )

APPEAL FROM THE MADISON CIRCUIT COURT The Honorable Thomas Newman, Jr., Judge Cause No. 48D03-1007-FC-337

May 9, 2013

MEMORANDUM DECISION - NOT FOR PUBLICATION

BROWN, Judge Demetrick Cameron appeals the revocation of his probation for his failure to pay

child support. Cameron raises one issue, which we restate as whether the evidence is

sufficient to support the revocation of his probation. We affirm.

Facts and Procedural History

Cameron has two children, J.C. and M.S. On July 26, 2010, the State charged

Cameron with nonsupport of a dependent child as a class C felony alleging that he

knowingly failed to provide support to his dependent child J.C. giving rise to unpaid child

support due and owing in an amount of $27,858.27. On December 27, 2010, Cameron

and the State entered into a plea agreement pursuant to which Cameron agreed to plead

guilty as charged and the State agreed to recommend that he receive a sentence of eight

years suspended to probation. Cameron pled guilty pursuant to the plea agreement, and

the trial court sentenced him to eight years, all of which was suspended to probation.

On July 20, 2012, the State filed a Notice of Violation of Probation alleging that

Cameron committed the new criminal offense of nonsupport of a dependent child as a

class C felony under cause number 48C01-1202-FC-297 (“Cause No. 297”) and failed to

pay child support as ordered. On August 6 and 13, 2012, the court held an evidentiary

hearing at which the parties presented evidence and arguments. At the hearing, the State

presented Cameron’s payment history with respect to his support obligation which shows

that Cameron made twenty-one support payments in 2002, twelve payments in 2003, one

payment in 2004, and four payments in 2008. Cameron testified that he was on probation

for non-support of J.C. and that the State’s allegation was that there was a new charge of

non-support filed against him with respect to M.S. He testified that he went to prison for

2 battery of M.S.’s mother and that in 1999 or 2000 his visitation rights with respect to

M.S. were suspended. Cameron indicated that he believed that his weekly support

payment of thirty-four dollars had ceased when his visitation was suspended.

The State presented testimony that Cameron made four payments in 2008, that his

last support payment with respect to M.S. was on September 19, 2008, and that since that

time Cameron had not made any additional support payments. The trial court noted that

Cameron was placed on probation in 2011, and the State responded, noting that

Cameron’s position was that he was unaware that he was required to make support

payments, and that the evidence introduced by the State was intended to establish that

Cameron’s payments throughout the years showed that he had to be aware that he was

responsible for making payments. M.S.’s mother testified that Cameron sent her an

instant message on Facebook saying that if M.S. needed anything to ask him, that she told

Cameron “to send the money to the courthouse to pay his child support,” and that

Cameron “said that he didn’t want the white man in his business.” Transcript at 57.

M.S.’s mother testified that she had not received any support payments since that

communication. When asked if he had income that he could apply to his support

obligation, Cameron responded “Yeah, I was working at Target.” Id. at 60. Cameron

acknowledged that he had not paid support for M.S. after December of 2011. Cameron

testified that, when his visitation with M.S. was taken away, he asked his attorney if he

still had to pay child support and that his attorney must have misled him in stating that he

did not have to pay support. He further testified that there had not been a child support

warrant for him and he thought that meant that he did not have to pay child support.

3 Cameron disputed the testimony of M.S.’s mother regarding his comments after making

contact on Facebook. The court found Cameron violated his probation and ordered that

he serve his previously-suspended sentence.

Issue and Standard of Review

The issue is whether the evidence is sufficient to support the revocation of

Cameron’s probation. Probation is a matter of grace left to trial court discretion, not a

right to which a criminal defendant is entitled. Smith v. State, 963 N.E.2d 1110, 1112

(Ind. 2012). A trial court’s probation decision is subject to review for abuse of discretion.

Id. An abuse of discretion occurs where the decision is clearly against the logic and

effect of the facts and circumstances. Id. A probation hearing is civil in nature and the

State need only prove the alleged violations by a preponderance of the evidence. Id. We

will consider all the evidence most favorable to supporting the judgment of the trial court

without reweighing that evidence or judging the credibility of witnesses. Id. If there is

substantial evidence of probative value to support the trial court’s conclusion that a

defendant has violated any terms of probation, we will affirm its decision to revoke it. Id.

The violation of a single condition of probation is sufficient to revoke probation. Wilson

v. State, 708 N.E.2d 32, 34 (Ind. Ct. App. 1999).

Discussion

A person’s probation may be revoked if “the person has violated a condition of

probation during the probationary period.” Ind. Code § 35-38-2-3(a)(1). In order to

obtain a revocation of probation, “the state must prove the violation by a preponderance

of the evidence.” Ind. Code § 35-38-2-3(f). Further, “[p]robation may not be revoked for

4 failure to comply with conditions of a sentence that imposes financial obligations on the

person unless the person recklessly, knowingly, or intentionally fails to pay.” Ind. Code

§ 35-38-2-3(g).

Cameron contends that the State presented insufficient evidence that he violated a

condition of his probation and that the State failed to meet its burden that he recklessly,

knowingly or intentionally failed to pay his financial obligations. He argues the State

failed to prove “that he was ordered to pay support as a condition of probation” and that

“the Probation Order/Specific Conditions of Sentence signed by Cameron on January 10,

2011 it [sic] specifically shows that child support is not a condition of probation.”

Appellant’s Brief at 8. Cameron further argues that he was advised by his attorney,

“following a visitation hearing in 1999 or 2000 in which his visitation was suspended,

that his support obligation was also stopped” and that “[f]or eleven years there was never

any indication from the Courts otherwise.” Id. Cameron asserts that the State failed to

meet its burden to show that he was aware of a high probability that he was not paying

current support every week and that the trial court’s order revoking his probation should

be reversed. Cameron also argues that he presented evidence that an alternative should

be considered and that the trial court abused its discretion by sending him to prison.

The State maintains that Cameron was ordered to pay child support for M.S., that

his visitation rights were terminated in either 1999 or 2000, that Cameron made twenty-

one support payments in 2002, twelve in 2003, one in 2004, and four in 2008, and that

Cameron has made no payments since September 18, 2008. The State argues that it

alleged Cameron violated his probation by committing a new criminal offense and that a

5 person violates Indiana law by failing to pay child support. The State further argues that,

although the conversation with his attorney occurred sometime between 1998 and 2000,

Cameron subsequently made a total of thirty-eight child support payments, that in 2009

or 2010 M.S.’s mother told Cameron to pay the support he owed and he refused, and that

the payments and the request of M.S.’s mother prove that Cameron at least knowingly

and most likely intentionally failed to pay his child support obligations with respect to

M.S.

The requirement that a probationer obey federal, state, and local laws is

automatically a condition of probation by operation of law. Williams v. State, 695

N.E.2d 1017, 1019 (Ind. Ct. App. 1998); Ind. Code § 35-38-2-1(b) (“If the person

commits an additional crime, the court may revoke the probation.”). When the alleged

probation violation is the commission of a new crime, the State does not need to show

that the probationer was convicted of a new crime. Whatlev v. State. 847 N.E.2d 1007,

1010 (Ind. Ct. App. 2006). The allegation that a probationer has violated probation “only

has to be proven by a preponderance of the evidence.” Id. In other words, the evidence

need show only that it is more likely true than not true that Henderson engaged in

criminal activity. See Demmond v. State, 166 Ind. App. 23, 25, 333 N.E.2d 922, 923-924

(1975).

In Runyon v. State, the Indiana Supreme Court held that if the violation of a

probation condition involves a financial obligation, then the probationer must be shown

to have recklessly, knowingly, or intentionally failed to pay. 939 N.E.2d 613, 616 (Ind.

2010). The Court determined “[a]s to the fact of violation, the statute expressly imposes

6 the burden of proof upon the State. But with respect to the ability to pay, the burden of

proof is not explicitly designated.” Id. The Court held, “it is the State’s burden to prove

both the violation and the requisite state of mind in order to obtain a probation

revocation.” Id. With respect to the ability to pay, the Court held that it is the defendant

probationer’s burden “to show facts related to an inability to pay and indicating sufficient

bona fide efforts to pay so as to persuade the trial court that further imprisonment should

not be ordered.” Id. at 617 (citing Woods v. State, 892 N.E.2d 637, 641 (Ind. 2008)).

The record reveals that the State presented evidence that Cameron’s last support

payment with respect to M.S. was on September 19, 2008, and that since that time he had

not made any support payments. Also, Cameron acknowledged that he had not paid

support for M.S. after December of 2011. Based on the record, the State demonstrated

that Cameron failed to pay his weekly support obligations which constituted a new

criminal offense which was prohibited as a condition of his probation. See Smith, 963

N.E.2d at 1113 (finding that the record made clear that Smith failed to pay weekly

support obligations as a required condition of his probation).

With respect to whether the State showed that Cameron failed to make the support

payments knowingly, intentionally, or recklessly, the Indiana Supreme Court has held

that “because the phrase ‘recklessly, knowingly, or intentionally’ appears in the

disjunctive and thus prescribes alternative considerations, the state of mind requirement

may be satisfied by adequate evidence that a defendant’s failure to pay a probation

imposed financial obligation was either reckless, knowing, or intentional.” Id. (citing

Runyon, 939 N.E.2d at 616). “Ind. Code § 35-41-2-2(b) provides that a person engages

7 in conduct ‘knowingly’ if, when he or she engages in the conduct, the person is aware of

a ‘high probability’ that he or she is doing so.” Id. “Because knowledge is a mental state

of the actor, it may be proved by circumstantial evidence and inferred from the

circumstances and facts of each case.” Id. (citation omitted). Thus, in order to sustain

the probation revocation in this case, the evidence must show that Cameron was aware of

a high probability that he was not paying his current support obligation. See id. (noting

that “in order to sustain the probation revocation in this case, the evidence must show that

Smith was aware of a high probability that he was not paying current support every week

. . . .”) (internal quotation marks and brackets omitted). While Cameron argued that he

was unaware that he was required to make child support payments for M.S., M.S.’s

mother testified that she told Cameron to send the money to the courthouse to pay his

child support and that Cameron did not do so. In addition, the State presented the

payment history of Cameron’s support payments with respect to M.S. showing that

Cameron made twenty-one support payments in 2002, twelve payments in 2003, one

payment in 2004, and four payments in 2008, most of which were in the amount of thirty-

four dollars. This evidence suggests that Cameron was aware that he was required to

make support payments for M.S.

Moreover, Cameron does not argue or point to the record to show that he argued

below that he was unable to make the requisite payments. When asked if he had income

that he could apply to his support obligation, Cameron responded affirmatively and stated

that he had been working at Target. “It is the probationer’s burden to show facts related

to the inability to pay and indicating sufficient bona fide efforts to pay so as to persuade

8 the trial court that further imprisonment should not be ordered.” Smith, 963 N.E.2d at

1114 (citing Runyon, 939 N.E.2d at 617)). Cameron failed to carry his burden to show

an inability to pay or that he made bona fide efforts to do so.

Based upon the evidence and under the circumstances, we conclude that the trial

court as the finder of fact could reasonably conclude by a preponderance of the evidence

that Cameron knowingly failed to pay current child support which constituted a new

criminal offense and a violation of the terms of his probation. See Smith, 963 N.E.2d at

1114 (holding that, from the testimony given by the probationer, “we are of the view that

the trial judge as fact finder could reasonably conclude that Smith knowingly failed to

pay current child support every week as required by the terms of his probation”).

Accordingly, we conclude that the trial court did not abuse its discretion in revoking

Cameron’s probation.

To the extent Cameron argues that the court abused its discretion by sending him

to prison, we note that probation is a matter of grace and a conditional liberty, not a right

to which a defendant is entitled. Smith, 963 N.E.2d at 1112. The trial court determines

the conditions of probation and may revoke probation if the conditions are violated.

Prewitt v. State, 878 N.E.2d. 184, 188 (Ind. 2007). A trial court’s sentencing decisions

for probation violations are reviewable using the abuse of discretion standard. Id. An

abuse of discretion occurs where the trial court’s decision is clearly against the logic and

effect of the facts and circumstances. Smith, 963 N.E. 2d at 1112. The evidence shows

that Cameron committed the new offense of nonsupport of a dependent as a class C

felony. “Proof of any one violation is sufficient to revoke a defendant’s probation.”

9 Figures v. State, 920 N.E.2d 267, 273 (Ind. Ct. App. 2010). The State presented

sufficient evidence to establish that Cameron knowingly failed to make payments toward

his child support obligation. Considering the evidence, we cannot say that the trial court

abused its discretion in revoking Cameron’s probation and ordering that Cameron serve

his previously-suspended sentence.

Conclusion

For the foregoing reasons, we affirm the judgment of the trial court.

Affirmed.

RILEY, J., and BRADFORD, J., concur.